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People v. Bishop12/13/2004
ion (c), any person convicted or receiving an order of supervision for driving under the influence of alcohol or drugs shall pay an additional $5 fee to the clerk. This additional fee, less 2 1/2 % that shall be used to defray administrative costs incurred by the clerk, shall be remitted by the clerk to the Treasurer within 60 days after receipt for deposit into the Spinal Cord Injury Paralysis Cure Research Trust Fund. This additional fee of $5 shall not be considered a part of the fine for purposes of any reduction in the fine for time served either before or after sentencing. Not later than March 1 of each year the Circuit Clerk shall submit a report of the amount of funds remitted to the State Treasurer under this subsection (c-7) during the preceding calendar year." 730 ILCS 5/ 5-9-1(c-7) (West 2002).
The cardinal rule of statutory interpretation, to which all other rules are subordinate, is to ascertain and give effect to the intent of the legislature. People v. Maggette, 195 Ill. 2d 336, 348 (2001). In determining the legislature's intent, a court should first consider the statutory language; this is the best means of determining the legislative intent. Maggette, 195 Ill. 2d at 348.
As a means of determining legislative intent, case law has examined the substance of various assessments to determine whether they are more nearly "fines" or "fees" or "costs." People v. Elizalde, 344 Ill. App. 3d 678, 682 (2003). A "fine" is a pecuniary punishment imposed as part of a criminal sentence, while a "fee," by contrast, is a charge for labor or services, especially professional services. Elizalde, 344 Ill. App. 3d at 682. A fee is not punitive in nature but is a collateral consequence of the defendant's conviction that is compensatory in nature. Elizalde, 344 Ill. App. 3d at 682.
Sections 5-9-1(c-5) and (c-7) dictate the payment of fees to the Trauma Center Fund and the Spinal Cord Injury Paralysis Cure Research Trust Fund, respectively. The plain language of the statute refers to both as "fees." If these "fees" were meant to be considered "fines" then the legislature's decision to call them "fees" would have no meaning. As in Elizalde, this language, by its repeated use of the word "fee," indicates an intent on the part of the legislature that an assessment made under sections 5-9-1(c-5) and (c-7) be treated as a fee and not a fine. See Elizalde, 344 Ill. App. 3d at 682. Therefore, the fees assessed to defendant under sections 5-9-1(c-5) and (c-7) are compensatory, not punitive in nature, and are not subject to ex post facto violations.
Finally, defendant contends that the trial court improperly imposed fines and fees against him without considering his ability to pay. The State points out that defendant has failed to present a transcript of his sentencing hearing as part of the record on appeal. Defendant asserts that he tried to obtain the transcript, but the court reporter was unable to find the transcript. The parties presented an agreed statement of facts that the trial court imposed 18 months' supervision and a total of $555 in fines. The agreed statement of facts makes no mention as to whether the trial court did or did not consider defendant's ability to pay.
Responsibility for preserving and presenting a sufficient record of the asserted error necessarily falls on the party who makes the assertion of error. People v. Stewart, 179 Ill. 2d 556, 565 (1997). When the record presented on appeal is incomplete, a court of review will indulge in every reasonable presumption favorable to the judgment from which the appeal is taken, including the presumption that the trial court ruled or acted correctly, and any doubt arising from the incompleteness of the rec
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